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REESE LLP
Michael R. Reese
100 West 93rd Street, 16th Floor
New York, NY 10025
Telephone: (212) 643-0500
Facsimile: (212) 253-4272
mreese@reesellp.com
Plaintiff by attorneys alleges upon information and belief, except for allegations pertaining
labels and sells ice cream products purporting to contain vanilla ice cream under the Wegmans
brand (“Products”).
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3. The Products are sold in containers of 1.5 quarts and 1.0 pints cartons and represented
as containing vanilla ice cream on the labels, in point-of-sale marketing, store display ads and print
4. The Products include approximately eighty (80) flavors across three (3) distinct
5. Within the Regular Product Line, defendant sells standard 10% milkfat ice cream
6. No fewer than twenty-two (22), or 27.5%, of the Products purport to contain types
1
21 C.F.R. § 135.110(f)(6) (applying identical labeling for vanilla ice cream when combined with other flavors, i.e.,
Neapolitan).
2
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8. Its popularity is attributed “to the perfect combination of elements – sugar, fat, frozen
9. Ice cream is defined by a minimum of 10 percent milkfat, weighing no less than 4.5
pounds to the gallon and containing less than 1.4 % egg yolk solids.4
2
Arwa Mahdawi, The big scoop: America's favorite ice-cream flavor, revealed, The Guardian, July 11, 2018
3
Vox Creative, The Reason You Love Ice Cream So Much Is Simple: Science, Eater.com, October 12, 2017.
4
21 C.F.R. § 135.110(a)(2) (“Ice cream and frozen custard.”).
3
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10. When ice cream has 1.4% or more egg yolk solids as part of its base, it is referred to
11. According to ice cream lore, Thomas Jefferson may have discovered vanilla ice
cream when a bottle of vanilla extract accidentally spilled into the frozen milk and cream dessert
12. Vanilla is the consistent number one flavor for 28% of consumers, confirmed two
groups who would know – the International Dairy Foods Association (IDFA) (ice cream
producers) and National Ice Cream Retailers Association (ice cream parlors).
13. The reasons for vanilla’s staying power are “not only because it is creamy and
delicious, but also because of its ability to enhance so many other desserts and treats.”7
14. By some estimates, approximately two-thirds of “all ice cream eaten is either vanilla
15. The applications of vanilla ice cream include its centerpiece between chocolate
wafers (“sandwich”), enrobed in chocolate on a stick (“bar”), topping a warm slice of fresh-baked
pie (“à la Mode”), drizzled with hot fudge and sprinkled with crushed nuts and topped by a
maraschino cherry (“sundae”) or dunked in a cold frothy glass of root beer (“float”).9
5
21 C.F.R. § 135.110(f)(1).
6
Thomas Jefferson’s Handwritten Vanilla Ice Cream Recipe, Open Culture, July 13, 2014; Thomas Jefferson’s Vanilla
Ice Cream, Taste of Home, June-July 2012; Thomas Jefferson’s Original Vanilla Ice Cream Recipe, Jefferson Papers,
Library of Congress; Anna Berkes, “Ice Cream” in Thomas Jefferson Encyclopedia, Thomas Jefferson Foundation,
Inc., Monticello.org, June 28, 2013
7
Press Release, IDFA, Vanilla Reigns Supreme; Chocolate Flavors Dominate in Top Five Ice Cream Favorites Among
Americans, July 1, 2018
8
Bill Daley (the other one), Which vanilla ice cream is the cream of the crop? We taste test 12 top brands, Chicago
Tribune, July 18, 2018
9
The True Wonders of Vanilla Ice Cream, FrozenDessertSupplies.com.
4
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16. The tropical orchid commonly known as “vanilla” does not develop its prized flavor
on its own.
17. By law, vanilla refers to the “the total sapid and odorous principles extractable from
18. Shortly after the passage of the Pure Food and Drugs Act of 1906, E. M. Chace,
Assistant Chief of the Foods Division of the U.S. Department of Agriculture’s Bureau of
Chemistry, noted “There is at least three times as much vanilla consumed [in the United States] as
19. This demand could not be met by the natural sources of vanilla, leading
20. Though the Pure Food and Drugs Act was enacted to “protect consumer health and
prevent commercial fraud,” this was but one episode in the perpetual struggle against those who
have sought profit through sale of imitation and lower quality commodities, dressed up as the
genuine articles.12
21. Daily headlines tell a story of a “resurgent” global threat of “food fraud” – from olive
oil made from cottonseeds to the horsemeat scandal in the European Union.13
10
21 C.F.R. §169.3(c)
11
E. M. Chace, “The Manufacture of Flavoring Extracts,” Yearbook of the United States Department of Agriculture
1908 (Washington, DC: Government Printing Office, 1909) pp.333–42, 333 quoted in Nadia Berenstein, "Making a
global sensation: Vanilla flavor, synthetic chemistry, and the meanings of purity," History of Science 54.4 (2016):
399-424 at 399.
12
Berenstein, 412; some of the earliest recorded examples of food fraud include unscrupulous Roman merchants who
sweetened wine with lead.
13
Jenny Eagle, ‘Today’s complex, fragmented, global food supply chains have led to an increase in food fraud’,
FoodNavigator.com, Feb. 20, 2019; M. Dourado et al., Do we really know what’s in our plate?. Annals of Medicine,
51(sup1), 179-179 (May 2019); Aline Wisniewski et al., "How to tackle food fraud in official food control authorities
in Germany." Journal of Consumer Protection and Food Safety: 1-10. June 11, 2019.
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22. While “food fraud” has no agreed-upon definition, its typologies encompass an ever-
expanding, often overlapping range of techniques with one common goal: giving consumers less
23. Vanilla is considered a “high-risk [for food fraud] product because of the multiple
market impact factors such as natural disasters in the source regions, unstable production, wide
variability of quality and value of vanilla flavorings,” second only to saffron in price.14
24. The efforts at imitating vanilla offers a lens to the types of food fraud regularly
➢ Substitution or Replacement • Tonka beans, which are banned from entry to the
a food product/ingredient United States, instead of vanilla beans
with an alternate food • Coumarin, phytochemical found in Tonka beans, to
product/ingredient of lower increase the vanilla flavor perception
quality
14
Société Générale de Surveillance SA, (“SGS “), Authenticity Testing of Vanilla Flavors – Alignment Between
Source Material, Claims and Regulation, May 2019.
15
Kathleen Wybourn, DNV GL, Understanding Food Fraud and Mitigation Strategies, PowerPoint Presentation, Mar.
16, 2016.
6
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16
Renée Johnson, “Food fraud and economically motivated adulteration of food and food ingredients." Congressional
Research Service R43358, January 10, 2014.
17
Recent example of this would be “evaporated cane juice” as a more healthful sounding term to consumers to identify
sugar
18
Berenstein, 423.
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25. To prevent deception of consumers, the labeling of ice cream is divided into three
19
Chee-Teck Tan, "Physical Chemistry in Flavor Products Preparation: An Overview" in Flavor Technology, ACS
Symposium Series, Vol. 610 1995. 1-17.
20
Charles Zapsalis et al., Food chemistry and nutritional biochemistry. Wiley, 1985, p. 611.
21
Donna Berry, Understanding the limitations of natural flavors, BakingBusiness.com, Jan. 16, 2018.
22
Kansas State Board of Health, Bulletin, Vol. 7, 1911, p. 168.
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categories which differ based on factors including (1) the source(s) of the characterizing flavor,
(2) the flavor which predominates, (3) the amount of each flavor component and (4) the percent of
26. For ice cream, any flavor not derived from the characterizing flavor is considered an
artificial flavor.
27. For decades, consumers have expected products containing vanilla ice cream to be
exclusively flavored by real vanilla derived from the vanilla plant and contain a sufficient amount
28. This requirement is contained at 21 C.F.R. §135.110(f)(2)(i), which states that where
an ice cream contains no artificial flavor, the name on the principal display panel or panels of the
label shall be accompanied by the common or usual name of the characterizing flavor, e.g.,
“vanilla,” in letters not less than one-half the height of the letters used in the words “ice cream.”
29. Because ice cream is a standardized food and the vanilla ingredients are subject to
their own standards, the designation of the vanilla flavoring is controlled by 21 U.S.C. §343(g):
30. This means that where an ice cream characterized by a vanilla and does not contain
23
21 C.F.R. § 135.110(f)(2)(i)-(iii); 21 C.F.R. § 135.110(f)(3)-(5).
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artificial flavor, its ingredient list is required to bear “the common names of optional ingredients
31. For vanilla ice cream, the common names of the flavorings include Vanilla Extract,
Concentrated Vanilla Extract, Vanilla Flavoring and Concentrated Vanilla Flavoring, specified in
32. If an ice cream contains a natural characterizing flavor (i.e., vanilla) and an artificial
flavor simulating it, and if the natural flavor predominates, a non-misleading label would be
34. If an ice cream contains a natural characterizing flavor and an artificial flavor
simulating it, and if the artificial flavor predominates, or if only artificial flavor is used, a non-
V. The Vanilla Ice Creams or Products Containing Vanilla Ice Cream Varieties are Misleading
35. The Products’ principal display panels all indicate they contain vanilla ice cream as
24
21 U.S.C. § 343(g)(2) read with 21 C.F.R. § 135.110(f)(2)(i) and 21 C.F.R. §§ 169.175 – 169.178.
25
21 C.F.R. § 135.110(f)(2)(ii).
26
21 C.F.R. § 135.110(f)(2)(iii).
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36. The representations of the “vanilla” in the name “vanilla ice cream” are unqualified
and the labels and packaging do not disclose the addition of non-vanilla flavors as part of vanilla
ice cream.
37. The Regular and/or Premium Vanilla Ice Cream Products are misleading because
they do not contain the amount, type and percentage of vanilla as a component of the flavoring in
38. The front label statements of “vanilla ice cream” are understood by consumers to
identify a product where the characterizing flavor is vanilla and supplied to the Products only from
39. The Products’ vanilla ice cream is not flavored only by vanilla but contains flavors
40. This is revealed through the ingredient lists indicating the Products contain “natural
flavors” as indicated in the sections below corresponding to the different product lines.
41. The Products’ flavor components are identical across the Products purporting to be
42. For the purpose of this section, “Regular” will exclude those Products in the Regular
43. The Regular Products give consumers the impression that vanilla is the sole flavor
source due to one or more of the statements or representations on the front label.
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44. The above Vanilla Ice Cream Product is also misleading because the front label states
45. The Product’s ingredient list discloses the presence of “Natural Flavor,” which
means that the “Natural Vanilla Flavor” is part of the “Natural Flavor.”
46. Consumers are misled by a material omission – failing to disclose that the flavoring
27
Category I.
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48. The Regular and Premium Products are not flavored only by vanilla but contain
49. This is revealed through the ingredient lists indicating the Regular and Premium
Products contain “Natural Flavor” for the Vanilla Ice Cream and Organic Vanilla Ice Cream,
below.28
28
The flavor is listed as “Natural Flavor” for all varieties of Regular and Premium items purporting to contain vanilla
ice cream.
13
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51. “Natural Flavor” means the Products contain flavor not derived from vanilla beans,
VII. Products Labeled as or with Vanilla Ice Cream Modified by Express Nutrient Content Claims30
A. Differences between Standard Vanilla Ice Cream and Version Modified by Express
i. Allowance Made for Variations in Fat, Sugar and Calories in Ice Cream
52. Until the early 1990s, any product with “ice cream” (or a standardized food) in its
name had to meet requirements set in its standards of identity which required a dairy product with
“not less than 10 percent milkfat, nor less than 10 percent nonfat milk solids.”31
53. Around this time, express nutrient content claims were introduced, which meant
29
21 C.F.R. § 135.110(f)(2)(ii).
30
21 CFR § 130.10 – Requirements for foods named by use of a nutrient content claim and a standardized term.
31
21 C.F.R. § 135.110(a)(2).
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companies could make “direct statement[s] about the level (or range) of a nutrient in a food, e.g.,
54. In all other respects, the product has to maintain conformity to the standard so
consumers will not expect a product to taste and/or perform in a certain way when that product
departs in significant and/or material ways from what they are accustomed to receiving.
55. For example, instead of requiring ice cream to have 10% milkfat, “lowfat ice cream”
could contain a maximum of 3 grams of total fat per serving (½ cup) and “nonfat ice cream” could
56. The following table contains variations of ice cream with express nutrient content
claims.
32
21 C.F.R. § 101.13(b)(1).
33
21 21 C.F.R. § 130.10(a).
34
21 C.F.R. § 130.10(e) (“Nomenclature. The name of a substitute food that complies with all parts of this regulation
is the appropriate expressed nutrient content claim and the applicable standardized term.”)
35
21 C.F.R. § 101.62(b)(4)
36
21 C.F.R. § 101.56
37
21 C.F.R. § 101.60(c)(2)
38
21 C.F.R. § 101.62(b)(2)
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57. Modified versions of standardized foods were permitted to deviate from the standard
with respect to performance characteristics like moisture content, food solids content requirements,
or processing conditions.
58. In modified foods, the ingredients were required to be those permitted by the
59. If an ingredient or component was specifically required by the standard, it could not
be replaced or exchanged with a similar ingredient from another source unless the standard allows
it, i.e., vegetable oil shall not replace milkfat in light sour cream).41
61. All ingredients required by a standard have to still be present in a significant amount
in a modified version of the food, viz, at least that amount that is required to achieve the technical
62. The Products represented as Modified Versions of the Standardized Vanilla Ice
39
21 C.F.R. § 101.62(b)(1)
40
21 C.F.R. § 130.10(d)(1).
41
21 C.F.R. § 130.10(d)(2).
42
21 C.F.R. § 130.10(d)(3).
43
21 C.F.R. § 130.10(d)(4).
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63. Two examples of Modified Ice Cream Products are represented below, the Light
65. “Natural Flavor” means the Products contain flavor not derived from vanilla beans,
66. Vanilla ice cream modified by an express nutrient content claim requires that the
44
21 C.F.R. § 135.110(f)(2)(ii).
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flavor is derived exclusively from the characterizing flavor, vanilla, and in sufficient amounts to
67. The standard for vanilla ice cream does not permit the Products to replace or
substitute the flavors obtained from a non-vanilla source for flavors obtained from the vanilla plant,
68. Vanilla ice cream modified by express nutrient content claim does not permit non-
vanilla bean derived flavors in a Category 1 vanilla ice cream where there is an unqualified
representation the food is flavored by the characterizing flavor. See 21 C.F.R. § 130.10(d)(3).46
69. The prohibited ingredient or ingredient component in the Products is the non-vanilla
70. Because “Natural Flavor” is not permitted by the standard, it is by definition used in
71. Even if “Natural Flavor” was permitted in a Category 1 vanilla ice cream, the
Products’ labels would still be misleading because the ingredient lists do not identify the “Natural
Flavors” with an asterisk, such as “*Ingredient(s) not in regular vanilla light ice cream” or
45
21 C.F.R. § 130.10(d)(2) (“An ingredient or component of an ingredient that is specifically required by the standard
(i.e., a mandatory ingredient) as defined in parts 131 through 169 of this chapter, shall not be replaced or exchanged
with a similar ingredient from another source unless the standard, as defined in parts 131 through 169 of this chapter,
provides for the addition of such ingredient (e.g., vegetable oil shall not replace milkfat in light sour cream); 21 C.F.R.
§ 135.110(f)(2)(i)
46
21 C.F.R. § 130.10(d)(3) (“An ingredient or component of an ingredient that is specifically prohibited by the
standard as defined in parts 131 through 169 of this chapter, shall not be added to a substitute food under this section.”);
21 C.F.R. § 135.110(f)(2)(i)
47
21 C.F.R. § 130.10(f)(2) (“Ingredients not provided for, and ingredients used in excess of those levels provided
for, by the standard as defined in parts 131 through 169 of this chapter, shall be identified as such with an asterisk in
the ingredient statement, except that ingredients added to restore nutrients to the product as required in paragraph (b)
of this section shall not be identified with an asterisk. The statement “*Ingredient(s) not in regular ___” (fill in name
of the traditional standardized food) or “*Ingredient(s) in excess of amount permitted in regular ___” (fill in name of
the traditional standardized food) or both as appropriate shall immediately follow the ingredient statement in the same
type size.); 21 C.F.R. § 135.110(f)(2)(i).
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C. Express Nutrient Content Claim Does Not Relate to Flavoring Used in Ice Creams
72. The only authorized deviations from the standard by express nutrient content claims
are those that (1) are necessary to make the nutrient content claim, (2) to ensure that the food meets
the performance characteristics of the traditional standardized food and (3) to ensure the food is
73. The allowed modifications to standardized foods related to direct statements about
the level or range of a nutrient in the food such as fat, sugar and calories, as opposed to the amount
74. Modification of a food by an express nutrient content claim does not provide
justification or authority for deviating from the vanilla flavor requirement of a Category 1 ice
cream because:
• The nutrient content claims modify the term “ice cream” by adjusting the
• the modified products are called “vanilla light ice cream” and not “light
and contributors to fat and sugar content and other nutrients which are
• Simple enough to designate an ice cream with the term “vanilla flavored”
48
21 C.F.R. § 130.10(e) (“Nomenclature. The name of a substitute food that complies with all parts of this regulation
is the appropriate expressed nutrient content claim and the applicable standardized term.”)
19
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75. The term “French” is not a license to provide consumers a different amount, type and
modify the amount of vanilla or proportion of vanilla compared to the total flavoring ingredients
76. The descriptor “French” or “french” preceding “vanilla” does not modify the word
“vanilla.”
77. Instead, “French” means amount the ice cream base contains 1.4% or more egg yolk
solids.49
78. The egg yolk solids with the vanilla distinguish a french vanilla ice cream variant by
contributing to a:50
• pale-yellow color.
79. The French Vanilla Ice Cream Products are misleading because though the front label
states “French Vanilla Ice Cream,” it does not derive its characterizing flavor exclusively from
vanilla beans, as indicated through the ingredient list which lists “Natural Flavor.”
49
21 C.F.R. § 135.110(f)(1) (“The name of the food is ‘ice cream’; except that when the egg yolk solids content of
the food is in excess of that specified for ice cream by paragraph (a) of this section, the name of the food is ‘frozen
custard’ or ‘french ice cream’ or ‘french custard ice cream’.)
50
Sheela Prakash, What’s the Difference Between Vanilla and French Vanilla Ice Cream?, The Kitchn, June 7, 2017.
20
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IX. “Natural Flavor” is Not Consistent with What Consumers and Law Requires for Vanilla Ice
Cream
80. All of the Products across all Product Lines indicate they contain “Natural Flavor”
as the only flavoring ingredient listed on the ingredient list, making them all misleading since they
A. Natural Flavor is not a Synonym for Vanilla Flavor or Vanilla Extract in the Products
81. A natural flavor in the context of ice cream is different than a natural flavor provided
82. In ice cream, a natural flavor means a flavor that was derived from the product whose
21
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flavor is simulated – i.e., in a product which is, or contains vanilla ice cream, a natural flavor means
83. “Natural Flavor” is listed on the ingredient list because the flavor (i) imparted to the
Products is not solely and exclusively supplied by the Natural Vanilla Flavor and (ii) contains
84. Defendant’s listing of “natural flavor” is not another way to refer to the exclusively
vanilla flavoring ingredients that consumers expect, and the law requires.
85. These exclusively vanilla ingredients – vanilla flavoring, vanilla extract, etc. – differ
only in that the former is at least thirty-five (35) percent ethyl alcohol while the latter is less than
this amount.52
86. If the Products contained any of the exclusively vanilla ingredients, there would not
87. Additionally, it would be illogical to use a more expensive and higher quality
ingredient (vanilla extract or vanilla flavoring) but designate it with a vague term perceived less
favorably by consumers due to its opaque components, lower cost and ubiquity.
89. The standardized vanilla ingredients – vanilla extract, vanilla flavoring, concentrated
vanilla flavoring, and vanilla powder – could be understood as complying with the requirements
51
Compare 21 C.F.R. § 101.22 (natural flavor) with 21 C.F.R. § 169.175 (Vanilla extract.) and § 169.177 (Vanilla
flavoring.).
52
21 C.F.R. §§ 169.175 (Vanilla extract.), 169.177 (Vanilla flavoring.); also concentrated versions of each of these.
53
21 C.F.R. § 169.180, § 169.181, § 169.182.
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produced from non-vanilla bean materials, like wood pulp, coal tar or plant fiber.
91. While vanillin is a main flavoring component of vanilla, only 1-2% of vanillin in
92. This type of “natural vanillin” is rarely produced, which means that almost all
93. For the purposes of ice cream flavor labeling, vanillin (from non-vanilla sources)
cannot be designated as a “natural flavor” because it implies it derives from vanilla beans, whose
flavor it simulates.55
94. This applies even when vanillin is produced through a natural process (fermentation),
95. This means if a vanilla flavor is derived from any source other than vanilla, it is
96. Therefore, the standardized vanilla-vanillin combination ingredients are not the
ingredients used in the Products but for some reason, designated as “natural flavor.”
C. “Natural Flavor” May Refer to “Vanilla with Other Natural Flavors” (“Vanilla WONF”)
97. A typical ingredient used when giving consumers less vanilla than they are expecting
98. When adding complicated flavors to a product, a flavor supplier typically mixes
54
21 C.F.R. § 169.175 (Vanilla extract.), § 169.176 (Concentrated vanilla extract.), § 169.177 (Vanilla flavoring.), §
169.178 (Concentrated vanilla flavoring.) and § 169.179 (Vanilla powder.).
55
21 C.F.R. § 101.22(a)(3)
56
In contrast to the regulations at 21 C.F.R. § 101.22.
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various flavors together into one package, for reasons including convenience and processing.
99. Since vanilla is the world’s second most valuable flavor ingredient, flavor suppliers
and the companies they work with are continually exploring new ways to increase profits at the
margins, which is at the expense and to the detriment of consumers and in violation of law.
likely less than half – and compounding, extending and/or diluting it with “other natural flavors,”
or flavors not derived from vanilla, they can plausibly call this ingredient “Vanilla With Other
Natural Flavors.”
101. No standardized vanilla ingredients provide for “other natural flavors” to be added
with a vanilla flavoring or vanilla extract because this would result in the spiking or fortification
102. On the Products’ ingredient lists, “Vanilla WONF” is designated through the term
“Natural Flavor.”57
103. In an ice cream represented as flavored only from the characterizing flavor, it is:58
1. deceptive and unlawful to include flavoring that is not derived from the
2. misleading and unlawful to simulate, reinforce and “extend” the taste of vanilla
i. think they received more real vanilla than they actually did;
ii. expect all of the vanilla flavor or taste imparted by the Products to be
57
The natural flavor as part of the vanilla ice cream component is distinct from any natural flavor that may be used in
the inclusions such as the chocolate chips or cookie dough.
58
21 C.F.R. § 135.110(f)(2)(i).
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X. Coloring Misleads Consumers to Expect Products Contain More Vanilla Than They Do
104. Many of the Products contain extracts of annatto and turmeric for coloring purposes,
105. Annatto and turmeric extracts are often used in cheddar cheese to provide a rich
yellow-orange shade evocative of milkfat associated with butter, produced by dairy cattle in the
United States.
106. No allegation is made with respect to how annatto and turmeric are declared or about
107. The added coloring provided to the Products by annatto and turmeric modifies the
color of the vanilla ice creams to a color closer to a vanilla ice cream flavored exclusively by flavor
108. The result is a darker color as indicated below, which is similar in appearance to
109. The darker color makes the consumer (1) less likely to question or be skeptical of the
amount and type of vanilla in the Products, (2) expect the Products to be similar to other, accurately
59
21 C.F.R. § 101.22(k)(3)
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labeled vanilla ice creams and (3) expect the Products contain more vanilla than they actually do.
XI. Products are Misleading Because They are Labeled and Named Similar to Other Products
110. Competitor brands to defendant’s are labeled as or containing vanilla ice cream and
111. The following is an example of French Vanilla Ice Cream of defendant and a
competitor product.
112. The ingredients in the Competitor Product and Product are presented below.
60
Publix Premium Ice Cream, French Vanilla 0.5 GL (1.89 LT), accessed September 10, 2019.
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Ingredients
Competitor
Product Milk, Cream, Sugar, Corn Syrup, Stabilizer (Carob Bean Gum, Guar Gum),
Pasteurized Egg Yolks, Color (Annatto And Turmeric), Pure Vanilla Extract And
Ground Vanilla Beans.
Product
Ingredients: Milk, Cream, Corn Syrup, Liquid Sugar, Skim Milk, Buttermilk,
Custard Base (Sugar, Sugared Egg Yolk [Egg Yolks, Sugar], Water), Milkfat,
Whey, Natural Flavor, Mono- and Diglycerides, Guar Gum, Cellulose Gum,
Carrageenan, Dextrose, Annatto (Color).
113. The following is an example of Vanilla Ice Cream of defendant and a competitor
product.
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114. The competitor product lists “Pure Vanilla Extract” on its ingredient list and does not
indicate the presence of other flavors not derived from vanilla, such as “Natural Flavor,” as listed
in defendant’s Products.
115. The following is an example of Vanilla Light Ice Cream of defendant and a
competitor product.
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116. Product names for ice cream are established through application of the relevant
regulations.
117. This product naming framework is intended to ensure that products of different
quality, i.e., one product contains a greater amount, type and/or proportion of a characterizing and
valuable ingredient, are not named in such a way that the consumer will be deceived into
purchasing the lower quality product under the false impression that it contains the equivalent
amount of said ingredients or components. See 21 C.F.R. § 135.110(f) and 21 C.F.R. § 102.5(a)
(“General principles.”).61
XII. Conclusion
118. The proportion of the characterizing component, vanilla, has a material bearing on
price or consumer acceptance of the Products because it is more expensive and desired by
consumers.
119. Had Plaintiff and Class members known the truth about the Products, they would not
have bought the Product or would have paid less for it.
120. The Products contain other representations which are misleading and deceptive.
121. As a result of the false and misleading labeling, the Products are sold at premium
prices, approximately no less than $4.79, per 1.5 quart (1.42L) (across the Products), excluding
61
“The name shall be uniform among all identical or similar products and may not be confusingly similar to the name
of any other food that is not reasonably encompassed within the same name. Each class or subclass of food shall be
given its own common or usual name that states, in clear terms, what it is in a way that distinguishes it from different
foods.”
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122. Jurisdiction is proper pursuant to 28 U.S.C. § 1332(d)(2) (Class Action Fairness Act
of 2005 or “CAFA”).
123. Plaintiff Quincy Steele is a citizen of Pennsylvania and seeks to represent a class of
all citizens of Pennsylvania who purchased any of the relevant Products during the statutes of
limitation.
124. Plaintiff Jimmy Arriola is a citizen of New York and seeks to represent a class of all
citizens of New York who purchased any of the relevant Products during the statutes of limitation.
125. Plaintiffs will seek amendment to include affected persons from States other than
Pennsylvania and New York who will represent classes of citizens from their respective States.
126. Defendant Wegmans Food Markets, Inc. is a New York corporation with a principal
127. Since plaintiff Steele is a citizen of Pennsylvania and defendant is a citizen of New
York, diversity of citizenship is satisfied. 28 U.S.C. § 1332(d)(2)(A) (“Under CAFA, [t]he district
courts shall have original jurisdiction of any civil action in which the matter in controversy exceeds
the sum or value of $5,000,000, exclusive of interest and costs, and is a class action in which—
(A) any member of a class of plaintiffs is a citizen of a State different from any defendant”).
129. The “local controversy” exception does not apply because less than two-thirds of the
130.
131. Under the "local controversy" exception, a district court must decline jurisdiction if
"(1) more than two-thirds of the putative class members are citizens of the state in which the action
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was originally filed; (2) there is at least one defendant from whom `significant relief' is sought by
the class members, whose alleged conduct forms a `significant basis' for the asserted claims, and
who is a citizen of the state in which the action was originally filed; (3) the principal injuries
suffered by the class were incurred in the state in which the action was originally filed; and (4) no
other class action asserting the same or similar factual allegations has been filed against any of the
defendants within the past three years." Green v. Sweetworks Confections, LLC, No. 18-cv-902
132. At bar, the “local controversy” exception is not satisfied because (1) less than two-
133. This fact can plausibly be alleged because defendant has “more than ninety stores
across seven states” – Maryland, Massachusetts, New York, New Jersey, North Carolina,
134. Forty-seven (47) of defendant’s stores are located in New York and at least forty-
three (43) are located in the states other than New York where it has stores.
135. For more than two-thirds of class members to be citizens of New York, defendant’s
would need to get two-thirds (66.6%) of its customers from New York, even though its stores in
136. Defendant’s stores serve a population of 73,103,961 citizens based on the 2019
62
https://www.wegmans.com/stores.html
63
https://simple.wikipedia.org/wiki/List_of_U.S._states_by_population
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State Population
Maryland 6,042,718
Massachusetts 6,902,149
New York 19,542,209
New Jersey 8,908,520
North Carolina 10,383,620
Pennsylvania 12,807,060
Virginia 8,517,685
137. New York contains 26.7% of the population who have defendant’s stores in their
state.
138. For the local controversy exception to apply, defendant would need to receive more
than two-thirds of its customers from a state that contains less than 27% of all possible customers
139. Further, all of defendant’s stores in New York, save one which was recently opened
in Brooklyn, are located in the less populated region of the State and outside of the populous
140. Under the “home state controversy” exception to CAFA, a district court "shall
decline to exercise jurisdiction" if "two-thirds or more of the members of all proposed plaintiff
classes in the aggregate, and the primary defendants, are citizens of the State in which the action
141. For the same reasons that the local controversy exception does not apply, the home
142. This is because less than two-thirds of the members of all proposed plaintiff classes
143. Defendant is a citizen of New York because it is incorporated in New York and has
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its principal place of business in New York. Andrews v. Citimortgage, Inc., No. 14-cv-1534
(JS)(AKT) (E.D.N.Y. Mar. 31, 2015) (“[a] corporation has dual citizenship for purposes of a
federal court's diversity jurisdiction under 28 U.S.C. § 1332; namely, it is a citizen of the state of
its incorporation and of the state where it has its principal place of business.").
any judicial district in which such defendant is subject to the court's personal jurisdiction with
respect to the civil action in question...."). Gen. Elec. Capital Corp. v. Titan Aviation, LLC, No.
06-cv-4795 (LTS)(FM), 2007 WL 107752, at *6 (S.D.N.Y. Jan. 16, 2007) ("A corporate entity or
jurisdiction.")
145. Since New York has more than one judicial district and defendant is a corporation
subject to personal jurisdiction in New York at the time of filing, defendant is “deemed to reside
in any district in that State within which its contacts would be sufficient to subject it to personal
jurisdiction if that district were a separate State.” 28 U.S.C. § 1391(d); Abergel v. Atlas Recovery
Sober Living, No. 19-cv-6339 (CM) (S.D.N.Y. Aug. 19, 2019) (“Where a state has more than one
judicial district, a defendant corporation generally "shall be deemed to reside in any district in that
State within which its contacts would be sufficient to subject it to personal jurisdiction if that
146. Because defendant is deemed to reside in this judicial district, venue is proper in this
district. 28 U.S.C. § 1391(b)(1) (“Venue in General. – A civil action may be brought in – (1) a
judicial district in which any defendant resides, if all defendants are residents of the State in which
147. In 2016, defendant’s stores had sales of $7.9 billion across all products.
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148. Though the Products identified here are a small fraction of defendant’s total products,
the aggregate amount of defendant’s total sales means that even if the Products identified are a
small percentage of the total, it is sufficient to exceed $5,000,000 exclusive of interest and costs.
28 U.S.C. § 1332(d)(6).
149. This court has personal jurisdiction over defendant because it conducts and transacts
150. A substantial part of events and omissions giving rise to the claims occurred in this
Parties
153. Defendant is a New York corporation with a principal place of business in Rochester,
154. During the class period, Plaintiffs purchased one or more of the Products identified
herein for personal use, consumption or application based on the above representations, for no less
than the price indicated, supra, excluding tax, within their districts and/or states.
155. Plaintiffs would consider purchasing the Products again if there were assurances that
Class Allegations
156. The classes will consist of consumers in all states where defendant operates its retail
stores.
157. Plaintiffs will represent their Pennsylvania and New York state sub-class of persons
who purchased any Products containing the actionable representations during the statutes of
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limitation.
158. Plaintiffs will be joined by class representatives from the other states where
159. Common questions of law or fact predominate and include whether the
representations were likely to deceive reasonable consumers and if Plaintiffs and class members
160. Plaintiff’s claims and the basis for relief are typical to other members because all
161. Plaintiffs are adequate representatives because her interests do not conflict with other
members.
162. No individual inquiry is necessary since the focus is only on defendant’s practices
163. Individual actions would risk inconsistent results, be repetitive and are impractical
164. Plaintiff’s counsel is competent and experienced in complex class action litigation
165. Plaintiff seeks class-wide injunctive relief because the practices continue.
166. Plaintiff asserts causes of action under the consumer protection statutes of
Pennsylvania, Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73 Pa. Stat.
Ann. §§ 201-1 et. seq. and New York, General Business Law (“GBL”) §§ 349 & 350;
167. Defendant’s acts and omissions are not unique to the parties and have a broader
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168. Plaintiff and class members desired to purchase products which were as described
169. Defendant’s conduct was misleading, deceptive, unlawful, fraudulent, and unfair
because (1) it gives the impression to consumers the Products are only flavored by the
characterizing ingredient and contains more of the characterizing ingredient than they actually do
and (2) the ingredient list fails to dispel ambiguity and reinforces the front-label impression as to
170. Plaintiff and class members relied on the representations and omissions, paying more
Negligent Misrepresentation
and/or nutritional attributes of the Products through representing the characterizing ingredient was
present in greater amount and proportion than it was and affirmatively representing the Products
173. Defendant had a duty to disclose and/or provide non-deceptive labeling of the
Products and knew or should have known same were false or misleading.
174. This duty is based on defendant’s position as an entity which has held itself out as
having special knowledge and experience in the production, service and/or sale of the product or
service type.
175. The representations took advantage of consumers’ (1) cognitive shortcuts made at
the point-of-sale and (2) trust placed in defendant, a well-known and respected brand in this sector.
176. Plaintiff and class members reasonably and justifiably relied on these negligent
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misrepresentations and omissions, which served to induce and did induce, the purchase of the
Products.
177. Plaintiff and class members would not have purchased the Products or paid as much
179. Defendant manufactures and sells products which contain the identified
180. The Products warranted to Plaintiff and class members that they possessed
181. Defendant’s front labels informed and warranted to Plaintiff the Products contained
only the characterizing ingredients to impart flavor, and that they were present in amounts
sufficient to independently characterize the food and that the flavor imparted to the Products was
a result of the food ingredients and not “natural flavors” or “other natural flavors.”
182. Defendant had a duty to disclose and/or provide a non-deceptive description of the
Products flavoring on the front labels and knew or should have known same were false or
misleading.
183. This duty is based, in part, on defendant’s position as one of the most recognized
184. Plaintiff provided or will provide notice to defendant and/or its agents,
185. The Products did not conform to their affirmations of fact and promises due to
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186. Plaintiff and class members relied on defendant’s claims, paying more than they
would have.
Fraud
188. Defendant’s purpose was to sell products which purported to contain valuable and
desired characterizing ingredient(s) or flavor(s), and represent the Products were exclusively or
predominantly flavored from that ingredient and contained sufficient independent amounts of
same.
189. The Products were not flavored exclusively from the characterizing ingredient but
190. Defendant’s fraudulent intent is evinced by its failure to accurately indicate the
Products contained flavor from non-vanilla sources on the front label, because it knows consumers
prefer foods that are flavored from food ingredients instead of added flavor ingredients and contain
191. Defendant’s intent was to secure economic advantage in the marketplace against
competitors by appealing to consumers who value products with sufficient amounts of the
192. Plaintiff and class members observed and relied on defendant’s claims, causing them
Unjust Enrichment
194. Defendant obtained benefits and monies because the Products were not as
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represented and expected, to the detriment and impoverishment of plaintiff and class members,
1. Declaring this a proper class action, certifying plaintiffs as representative and the
2. Entering preliminary and permanent injunctive relief by directing defendant to correct the
3. Injunctive relief to remove and/or refrain from the challenged representations, restitution
and disgorgement for members of the State Subclasses pursuant to the consumer protection
4. Awarding monetary damages and interest, including treble and punitive damages, pursuant
to the common law and consumer protection law claims, and other statutory claims;
5. Awarding costs and expenses, including reasonable fees for plaintiff’s attorneys and
experts; and
6. Other and further relief as the Court deems just and proper.
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-and-
Reese LLP
Michael R. Reese
100 West 93rd Street, 16th Floor
New York, NY 10025
Telephone: (212) 643-0500
Facsimile: (212) 253-4272
mreese@reesellp.com
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Case 1:19-cv-09227-LLS Document 1 Filed 10/04/19 Page 41 of 41
1:19-cv-05566
United States District Court
Southern District of New York
Quincy Steele Jimmy Arriola, , individually and on behalf of all others similarly situated
Plaintiffs
- against -
Complaint
Pursuant to 22 NYCRR 130-1.1, the undersigned, an attorney admitted to practice in the courts of
New York State, certifies that, upon information, and belief, formed after an inquiry reasonable
under the circumstances, the contentions contained in the annexed documents are not frivolous.